Summary Judgment Granted Dismissing Plaintiff’s State Claims Against Employer Under LHWCA

United States District Court for the Eastern District of Louisiana, May 19, 2022

In this asbestos action, plaintiff Callen Cortez brought state tort claims against Continental Insurance Company, sued in its capacity as the insurer of Halter Marine Services, Inc. The plaintiff worked at Halter Marine from 1974 until 1975, and was subsequently diagnosed with mesothelioma in 2020. Continental moved for summary judgment on the basis that the plaintiff’s claims against it are preempted under the Longshore and Harbor Workers’ Compensation Act (LHWCA).

Ultimately, the court agreed with Continental. Under the LHWCA, the date of the manifestation of the disease serves as the date of injury to determine which version of the LHWCA is applicable to a plaintiff’s claims. See Castorina v. Lykes Bros. S.S. Co., 758 F.2d 1025, 1029 (5th Cir. 1985). Here, the plaintiff’s injury arose when his disease manifested in 2020. As such, the court used the version of the LHWCA as it existed in 2020.

As per the post-1972 LHWCA, a worker must meet the “status” and “situs” requirements to determine if their injury is covered. Under the status requirement, the worker must be engaged in a “traditional maritime occupation.” The court will find that the status requirement is satisfied if the person is “directly involved in an ongoing shipbuilding operation.” Here, the plaintiff worked as a welder on new vessels, which the court found is an “essential step of the shipbuilding process.” Under the situs requirement, the injury must occur on the “navigable waters of the United States.” The plaintiff worked in the Halter Marine Lockport Yard, which is adjacent to a navigable waterway. Therefore, the court found that both the status and situs requirements were satisfied, and the plaintiff should have brought his claims under the LHWCA. As this court previously found that the LHWCA preempts state tort claims against an employer, the court dismissed the plaintiff’s state tort claims against Continental.

The court also dismissed the plaintiff’s intentional tort claims against Continental as the plaintiff failed to show that there was a disputed issue of fact as to whether Halter Marine “either consciously desired that plaintiff contract mesothelioma,” or that the plaintiff’s “mesothelioma was ‘inevitable or incapable of failing.’” Indeed, as other courts have recognized, “it is [not] common human experience … that mesothelioma is known certainly or inevitably to follow from asbestos exposure.” Thus, the court granted Continental’s motion for summary judgment.

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